Section 304(a) of the Federal Food, Drug, and Cosmetic Act, as
amended, permits multiple seizures of misbranded articles
"when the Administrator has probable cause to believe from facts
found, without hearing, . . . that the misbranded article is
dangerous to health, or that the labeling of the misbranded article
is fraudulent, or would he in a material respect misleading to the
injury or damage of the purchaser or consumer."
Upon the Administrator's finding, without a hearing, of probable
cause to believe that the labeling of a vitamin product distributed
by the appellee in interstate commerce was "misleading to the
injury or damage of the purchaser or consumer," eleven seizures of
the product were made and as many libel suits instituted over a
four-month period. There was no claim that the product was harmful
or dangerous to health. Appellee brought suit in the Federal
District Court to have the multiple seizure provision of § 304(a)
declared unconstitutional, and to dismiss all except the first
libel suit.
Held:
1. The Due Process Clause of the Fifth Amendment does not
require that there be afforded a hearing in connection with the
administrative determination to make multiple seizures, but is
satisfied by the opportunity which the claimant has for a full
hearing before the court in the libel proceedings. Pp.
339 U. S.
598-600.
(a) In making the finding here involved, the administrative
agency was merely determining whether a judicial proceeding should
be instituted, subject to final determination by the Attorney
General. Pp.
339 U. S.
598-599.
(b) Where only property rights are involved, the requirements of
due process are satisfied if there is an opportunity for a hearing
and a judicial determination at some stage. Pp.
339 U. S.
599-600.
2. The District Court had no jurisdiction to review the
administrative determination of probable cause. Pp.
339 U. S.
600-602.
3. The fact that the preparation here involved is not dangerous
to health does not require a different result, since the statutory
scheme treats every "misbranded article" the same in this respect
-- whether it is "dangerous to health," or its labeling is
"fraudulent" or materially "misleading to the injury or damage of
the purchaser or consumer." P.
339 U. S.
601.
Page 339 U. S. 595
4. Consolidation of the libel suits so that one trial may be had
is the relief against multiplicity of suits afforded by the statute
to the claimant of the seized goods. P.
339 U. S.
602.
87 F.
Supp. 650, reversed.
In a suit brought by the appellee, the District Court enjoined
the enforcement of the multiple seizure provision of § 304(a) of
the Federal Food, Drug, and Cosmetic Act, as violative of the Due
Process Clause of the Fifth Amendment of the Federal Constitution.
87 F. Supp.
650. On direct appeal to this Court,
reversed, p.
339 U. S.
602.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
This is an appeal [
Footnote
1] from a three-judge District Court specially constituted on
appellee's application for an injunction to restrain enforcement of
a portion of an Act of Congress for repugnance to the Due Process
Clause of the Fifth Amendment. [
Footnote 2]
Section 304(a) of the Federal Food, Drug, and Cosmetic Act, 52
Stat. 1044, 21 U.S.C. § 334(a), as amended, 62 Stat. 582, 21
U.S.C.Supp. III § 334(a), permits multiple seizures of misbranded
articles
"when the Administrator has probable cause to believe from facts
found, without hearing, by him or any officer or employee of the
Agency that the misbranded article is dangerous to health, or that
the labeling of the misbranded article is fraudulent, or would be
in a material respect misleading
Page 339 U. S. 596
to the injury or damage of the purchaser or consumer. [
Footnote 3]"
Appellee is the exclusive national distributor of Nutrilite Food
Supplement, an encapsulated concentrate of alfalfa, water cress,
parsley, and synthetic vitamins combined in a package with mineral
tablets. There is no claim that the ingredients of the preparation
are harmful or dangerous to health. The sole claim is that the
labeling was, to use the statutory words, "misleading to the injury
or damage of the purchaser or consumer," and that therefore the
preparation was "misbranded" when introduced into interstate
commerce.
This was indeed the administrative finding behind eleven
seizures resulting in that number of libel suits, between September
and December, 1948. The misbranding, it was found, resulted from
the booklet which
Page 339 U. S. 597
accompanied the preparation. [
Footnote 4] Shortly thereafter, the present suit was
instituted to have the multiple seizure provision of § 304(a)
declared unconstitutional and to
Page 339 U. S. 598
dismiss all libel cases except the first one instituted. The
District Court held that appellants had acted arbitrarily and
capriciously in violation of the Fifth Amendment in instituting
multiple libel suits without first affording the appellee a hearing
on the probable cause issue; that the multiple seizure provision of
§ 304(a) was unconstitutional under the Due Process Clause of the
Fifth Amendment, and that appellants should be permanently enjoined
from instituting any action raising a claim that the booklet
accompanying the preparation was a misbranding, since it was not
fraudulent, false, or misleading.
87 F. Supp.
650.
First. The administrative finding of probable cause
required by § 304(a) is merely the statutory prerequisite to the
bringing of the lawsuit. When the libels are filed, the owner has
an opportunity to appear as a claimant and to have a full hearing
before the court. [
Footnote 5]
This hearing, we conclude, satisfies the requirements of due
process.
At times, a preliminary decision by an agency is a step in an
administrative proceeding. We have repeatedly held that no hearing
at the preliminary stage is required by due process so long as the
requisite hearing is held before the final administrative order
becomes effective.
See Lichter v. United States,
334 U. S. 742;
Inland Empire Council v. Millis, 325 U.
S. 697;
Opp Cotton Mills v. Administrator,
312 U. S. 126.
But this case does not go as far. Here, an administrative agency
is merely determining whether a judicial proceeding should be
instituted. Moreover, its finding of probable cause, while a
necessary prerequisite to multiple seizures, has no effect in and
of itself. All proceedings
Page 339 U. S. 599
for the enforcement of the Act or to restrain violations of it
must be brought by and in the name of the United States. § 307.
Whether a suit will be instituted depends on the Attorney General,
not on the administrative agency. He may or may not accept the
agency's recommendation. If he does, seizures are made and libels
are instituted. But the seizures and suits are dependent on the
discretion of the Attorney General.
It is said that these multiple seizure decisions of the
Administrator can cause irreparable damage to a business. And so
they can. The impact of the initiation of judicial proceedings is
often serious. Take the case of the grant jury. It returns an
indictment against a man without a hearing. It does not determine
his guilt; it only determines whether there is probable cause to
believe he is guilty. But that determination is conclusive on the
issue of probable cause. As a result, the defendant can be arrested
and held for trial.
See Beavers v. Henkel, 194 U. S.
73,
194 U. S. 85;
Ex parte United States, 287 U. S. 241,
287 U. S. 250.
The impact of an indictment is on the reputation or liberty of a
man. The same is true where a prosecutor files an information
charging violations of the law. The harm to property and business
can also be incalculable by the mere institution of proceedings.
Yet it has never been held that the hand of government must be
stayed until the courts have an opportunity to determine whether
the government is justified in instituting suit in the courts.
Discretion of any official may be abused. Yet it is not a
requirement of due process that there be judicial inquiry before
discretion can be exercised. It is sufficient, where only property
rights are concerned, that there is at some stage an opportunity
for a hearing and a judicial determination.
Phillips v.
Commissioner, 283 U. S. 589,
283 U. S.
596-597;
Bowles v. Willingham, 321 U.
S. 503,
321 U. S. 520;
Yakus v. United States, 321 U. S. 414,
321 U. S.
442-443.
One of the oldest examples is the summary destruction of
property without prior notice or hearing for the protection
Page 339 U. S. 600
of public health. There is no constitutional reason why
Congress, in the interests of consumer protection, may not extend
that area of control. It may conclude, as it did here, that public
damage may result even from harmless articles if they are allowed
to be sold as panaceas for man's ills. A requirement for a hearing,
as a matter of constitutional right, does not arise merely because
the danger of injury may be more apparent or immediate in the one
case than in the other. For all we know, the most damage may come
from misleading or fraudulent labels. That is a decision for
Congress, not for us. The decision of Congress was that the
administrative determination to make multiple seizures should be
made without a hearing. We cannot say that due process requires one
at that stage.
Second. The District Court had no jurisdiction to
review the administrative determination of probable cause.
The determination of probable cause, in and of itself, had no
binding legal consequence, any more than did the final valuation
made by the Interstate Commerce Commission in
United States v.
Los Angeles & S.L. R. Co., 273 U.
S. 299. It took the exercise of discretion on the part
of the Attorney General, as we have pointed out above, to bring it
into play against appellee's business. Judicial review of such a
preliminary step in a judicial proceeding is so unique that we are
not willing easily to infer that it exists.
Judicial review of this preliminary phase of the administrative
procedure does not fit the statutory scheme, nor serve the policy
of the Act. Congress made numerous administrative determinations
under the Act reviewable by the courts. [
Footnote 6] But it did not place the finding of
probable cause under § 304(a) in that category. This highly
Page 339 U. S. 601
selective manner in which Congress has provided for judicial
review reinforces the inference that the only review of the issue
of probable cause which Congress granted was the one provided in
the libel suit.
Cf. Switchmen's Union of North American v.
National Mediation Board, 320 U. S. 297,
320 U. S.
305-306.
The purpose of the multiple seizure provision is plain. It is to
arrest the distribution of an article that is dangerous, or whose
labeling is fraudulent or misleading, pending a determination of
the issue of adulteration or misbranding. The public therefore has
a stake in the jurisdictional issue before us. If the District
Court can step in, stay the institution of seizures, and bring the
administrative regulation to a halt until it hears the case, the
public will be denied the speedy protection which Congress provided
by multiple seizures. It is not enough to say that the vitamin
preparation in the present case is not dangerous to health. This
preparation may be relatively innocuous. But the statutory scheme
treats every "misbranded article" the same in this respect --
whether it is "dangerous to health," or its labeling is
"fraudulent," or materially "misleading to the injury or damage of
the purchaser or consumer." [
Footnote 7] What we do today determines the jurisdiction
of the District Court in all the case in that category. If the
court in the present case can halt all multiple seizures but one,
so can the court in other cases. The means which Congress provided
to protect consumers against the injurious consequences of
protracted proceedings would then be seriously impaired. Congress
weighed the potential injury to the public from misbranded articles
against the injury to the purveyor of the article from a temporary
interference with its distribution and decided in favor of the
speedy, preventive device of multiple seizures. We would impair or
destroy the effectiveness
Page 339 U. S. 602
of that device if we sanctioned the interference which a grant
of jurisdiction to the District Court would entail. Multiple
seizures are the means of protection afforded the public.
Consolidation of all the libel suits so that one trial may be had
[
Footnote 8] is the relief
afforded the distributors of the articles. [
Footnote 9]
Reversed.
MR. JUSTICE BURTON concurs in the result.
MR. JUSTICE CLARK took no part in the consideration or decision
of this case.
[
Footnote 1]
62 Stat. 928, 961, 28 U.S.C. §§ 1253, 2101.
[
Footnote 2]
62 Stat. 968, 28 U.S.C. §§ 2282, 2284.
[
Footnote 3]
The provision of which the quoted portion is a part reads as
follows:
"Any article of food, drug, device, or cosmetic that is
adulterated or misbranded when introduced into or while in
interstate commerce or while held for sale (whether or not the
first sale) after shipment in interstate commerce, or which may
not, under the provisions of section 404 or 505, be introduced into
interstate commerce, shall be liable to be proceeded against while
in interstate commerce, or at any time thereafter, on libel of
information and condemned in any district court of the United
States within the jurisdiction of which the article is found:
Provided, however, That no libel for condemnation shall be
instituted under this Act for any alleged misbranding if there is
pending in any court a libel for condemnation proceeding under this
Act based upon the same alleged misbranding, and not more than one
such proceeding shall be instituted if no such proceeding is so
pending, except that such limitation shall not apply (1) when such
misbranding has been the basis of a prior judgment in favor of the
United States, in a criminal, injunction, or libel for condemnation
proceeding under this Act, or (2) when the Administrator has
probable cause to believe from facts found, without hearing, by him
or any officer or employee of the Agency that the misbranded
article is dangerous to health, or that the labeling of the
misbranded article is fraudulent, or would be in a material respect
misleading to the injury or damage of the purchaser or
consumer."
[
Footnote 4]
The Booklet,
How to Get Well and Stay Well, is used by
salesmen in soliciting prospective customers. A version of the
booklet in use in 1947 represented that Nutrilite had "cured or
greatly helped" such "common ailments" as
"Low blood pressure, Ulcers, Mental depression, Pyorrhea,
Muscular twitching, Rickets, Worry over small things, Tonsilitis,
Hay Fever, Sensitiveness to noise, Underweight, Easily tired, Gas
in Stomach, Cuts heal slowly, Faulty vision, Headache,
Constipation, anemia, Boils, Flabby Hysterical tendency, Eczema,
Overweight, Faulty memory, Lack of ambition, Certain bone
conditions, Nervousness, Nosebleed, Insomnia (sleeplessness),
Allergies, Asthma, Restlessness, Bad skin color, Poor appetite,
Biliousness, Neuritis, Night blindness, Migraine, High blood
pressure, Sinus trouble, Lack of concentration, Dental caries,
Irregular heartbeat, Colitis, Craving for sour foods, Arthritis
(rheumatism), Neuralgia, Deafness, Subject to colds."
This version is the basis for an indictment now pending in the
Southern District of California charging Lee S. Mytinger and
William, S. Casselberry with the misbranding of Nutrilite in
violation of the Federal Food, Drug, and Cosmetic Act.
After a hearing prior to the indictment, appellee revised the
booklet. Direct curative claims were eliminated. But pages 41-52 of
the revised booklet were devoted to case histories explaining that
Nutrilite brought relief from such ailments as diabetes,
feeblemindedness, stomach pains, sneezing and weeping. Appellant
Crawford, Associate Commissioner of Food and Drugs, concluded that
there was probable cause to believe, and that he did believe, that
this version of the booklet was misleading. On September 28 and 30,
1948, he recommended seizures of Nutrilite shipments.
Appellee thereafter ordered its salesmen to remove pages 37-58
which contained the case histories. The pages which remained
pointed to the dangers and prevalence of illness, described the
discovery of Nutrilite, and recommended the booklet to those who
wanted to get well and stay well. On December 2, 1948, appellant
Larrick, Assistant Commissioner of Foods and Drugs, made a probable
cause determination on these pages of the booklet and recommended
seizure.
Six new pages were thereafter added to the booklet. On December
9, 1948, appellant Dunbar, Commissioner of Foods and Drugs, made a
probable cause determination on that version of the booklet, and
recommended further seizures.
[
Footnote 5]
§ 304(b) provides in part:
"The article shall be liable to seizure by process pursuant to
the libel, and the procedure in cases under this section shall
conform, as nearly as may be, to the procedure in admiralty; except
that, on demand of either party, any issue of fact joined in any
such case shall be tried by jury."
[
Footnote 6]
Review of an order of the Administrator refusing to permit an
application for a new drug to become effective or suspending the
effectiveness of an application is authorized in § 505(h), 21
U.S.C. § 355(h). Orders of the Administrator in connection with
issuing, amending, or repealing regulations under §§ 401, 403(j),
404(a), 406(a) and (b), 501(b), 502(d), 502(h), 504, 604 are
expressly made reviewable by § 701(e) and (f), 21 U.S.C. § 371(e)
and (f).
[
Footnote 7]
See § 304(a)
note 3
supra.
[
Footnote 8]
Sec. 304(b) provides in part:
"When libel for condemnation proceedings under this section,
involving the same claimant and the same issues of adulteration or
misbranding, such pending in two or more jurisdictions, such
pending proceedings, upon application of the claimant seasonably
made to the court of one such jurisdiction, shall be consolidated
for trial by order of such courts, and tried in (1) any district
selected by the claimant where one of such proceedings is pending;
or (2) a district agreed upon by stipulation between the parties.
If no order for consolidation is so made within a reasonable time,
the claimant may apply to the court of one such jurisdiction, and
such court (after giving the United States attorney for such
district reasonable notice and opportunity to be heard) shall, by
order, unless good cause to the contrary is shown, specify a
district of reasonable proximity to the claimant's principal place
of business, in which all such pending proceedings shall be
consolidated for trial and tried. Such order of consolidation shall
not apply so as to require the removal of any case the date for
trial of which has been fixed. The court granting such order shall
give prompt notification thereof to the other courts having
jurisdiction of the cases covered thereby."
[
Footnote 9]
Congress has granted distributors through the provision for
consolidation of all libel suits the measure of relief which courts
at times grant through a stay of multiple actions.
See Landis
v. North American Co., 299 U. S. 248.
MR. JUSTICE FRANKFURTER, dissenting.
While I agree with the Court as to the constitutional and
statutory issues canvassed in its opinion, I am unable
Page 339 U. S. 603
to answer MR. JUSTICE JACKSON's dissent, and I must therefore
yield to it.
Of course, Congress may constitutionally vest judicially
unreviewable discretion in an executive agency to initiate multiple
suits in order to stop trafficking in pernicious drugs or even in
those that are harmless, where efficacy is misrepresented. I agree
that it has done so in the Federal Food, Drug, and Cosmetic Act of
1938. 52 Stat. 1040, 21 U.S.C. § 301
et seq. But it does
not at all follow that Congress has thereby cut off the right of
access to the courts to prove that the enforcing agency has not
acted within the broadest bounds of fair discretion, rare as the
occasion may be for such an attempt and however improbable its
success.
Such I understand to be the nature of the proceedings below, and
such the basis of the District Court's decree. Unless we can say,
as I cannot, that the findings in support of it have no support in
the evidence, we should not hold that the court below was without
jurisdiction to entertain the suit.
The limited claim which the District Court sustained falls
precisely within the qualification left open by this Court in a
leading case sustaining the power of Congress to vest unreviewable
discretion in executive agencies. When the Court was urged to deny
this power of Congress and "extreme cases" were put showing "how
reckless and arbitrary might be the action of Executive officers,"
the Court made this answer:
"It will be time enough to deal with such cases as and when they
arise. Suffice it to say that the courts have rarely, if ever, felt
themselves so restrained by technical rules that they could not
find some remedy, consistent with the law, for acts, whether done
by government or by individual persons, that violated natural
justice or were hostile to the fundamental
Page 339 U. S. 604
principles devised for the protection of the essential rights of
property."
Monongahela Bridge Co. v. United States, 216 U.
S. 177,
216 U. S. 195.
Mr. Justice Harlan, speaking for the Court, cast its thought in the
language current at the time. But the thought behind the words is
not outmoded, and controls, I believe, the case before us.
MR. JUSTICE JACKSON, dissenting.
The Court does not deal at all with what appears to be the
ultimate issue decided by the court below.
The trial court of three judges wrote no opinion, but made
forty-three detailed findings of fact which would require twenty of
these printed pages to reproduce and which summarize a 1,500-page
record of a long trial. Those findings are made largely on
undisputed evidence and on evidence from government sources. This
Court does not criticize or reverse any of them.
The substance of these is to find that the Government instituted
a multiplicity of court actions, with seizures in widely separated
parts of the country, with a purpose to harass appellee and its
dealers and intending that these actions and the attendant
publicity would injure appellee's business before any of the issues
in such cases could be tried. This, the court held, was justified
by no emergency, the product being, at worst, harmless, and having
been marketed for years with knowledge of the Department.
Assuming as I do that the Act on its face is not
constitutionally defective, the question remains whether it has
been so misused by refusal of administrative hearing, together with
such irreparable injury in anticipation of judicial hearing, as to
deny appellee due process of law or to amount to an abuse of
process of the courts.
The Government has sought and received from this Court
protection against a multiplicity of suits under
Page 339 U. S. 605
circumstances where injury was less apparent than in this.
Landis v. North American Co., 299 U.
S. 248. The holding of the court below and the
contention of the appellee here that the Government is not entitled
to so apply the statute as to bring multiple actions designed to
destroy a business before it can be heard in its own defense is not
frivolous, to say the least.
I am constrained to withhold assent to a decision that passes in
silence what I think presents a serious issue.